Deferred Action Resources and FAQs

On June 15, 2012, the Obama administration announced that it would grant "deferred action" status to young people who qualify as DREAM Act students. The Asian American Legal Defense and Education Fund (AALDEF) is holding a series of legal clinics to provide free legal advice and representation to people who qualify under this directive. These clinics will help to support the work of our youth group for undocumented Asian American youth, RAISE.

* * *

Download our latest Deferred Action fact sheet (revised August 2014) in English, Chinese, Korean, Bangla, Hindi, Punjabi, and Urdu to find out whether you meet the eligibility criteria, what documents you should start gathering for the application, and how to renew your DACA status.

You can also take a look at the FAQ released by U.S. Citizenship and Immigration Services, (USCIS), which was updated most recently on Oct. 23, 2014.

* * *

In 2013-14, AALDEF held several free legal advice clinics to counsel Asian immigrant youth and their families about DACA:

The "DREAM Act," the Development, Relief, and Education for Alien Minors Act, provides a path to a green card for young people who have been brought into the United States as minors. The DREAM Act was first introduced in 2001 and then reintroduced in 2010, but has not yet been passed as law. Under the current version of the DREAM Act, students with good moral character who came to the United States at age 15 or younger at least five years before the date of the legislation's enactment would qualify for "conditional permanent resident status" upon acceptance to college, graduation from a U.S. high school or being awarded a GED in the U.S., or serving in the armed forces.

(2) What was Obama's announcement on June 15, 2012?

President Barack Obama announced that he would be granting "deferred action" to young people who qualify as DREAM Act students. It is an unprecedented effort by the administration to provide a benefit to a certain class of undocumented immigrants. In effect, it is a moratorium on the deportation of immigrants who came to the United States as children and have gone through our education system.

(3) Which young people will benefit under this directive?

Young people may apply for deferred action who are:

between the ages of 15-30 years old;

entered the United States before the age of 16;

continuously resided in the United States since June 15, 2007;

present in the United States on June 15, 2012 and at the time you make your request for deferred action;

without lawful immigration status as of June 15, 2012; and

currently in school, graduated from high school, obtained a GED/in the process of getting a GED or graduated with an associates or bachelor's degree or honorably discharged veterans of the Coast Guard or Armed Forces.

(4) What is deferred action?

Deferred action is merely "limbo" status; it is not a path to a green card nor is it a path to citizenship. Congress will eventually have to pass the DREAM Act or some form of immigration legalization. Deferred action is available for two years. At the end of the two years, individuals must file an application for renewal with Citizenship and Immigration Services (CIS).

(5) What do I get out of this program if I qualify?

If you qualify, you cannot be deported. You will be able to apply for a work permit, and depending on the state where they live, you may be able to apply for a driver's license and a social security number. Work authorization is contingent on a grant of deferred action. In other words, if your deferred action is not renewed, you will not be eligible to renew your work permit. Once you are granted deferred action, you may also be allowed to travel for humanitarian, education, or employment purposes by applying for advance parole, which includes an application fee.

(6) What if I qualify and encounter ICE or Border and Customs?

If you have an encounter with ICE or Border and Customs, you will be briefly detained, interviewed for eligibility, and released without being placed in removal. If a qualifying individual is about to be removed, immediately contact either the Law Enforcement Support Center's hotline at 1-855-448-6903 or the ICE Office of the Public Advocate through the Office's hotline at 1-888-351-4024.

(7) What if I qualify and have been in removal proceedings and had my case administratively closed pursuant to the June 17, 2011 Morton Memo?

If you meet the criteria and have been in removal proceedings and have had your case administratively closed pursuant to the exercise of prosecutorial discretion, you will be automatically offered deferred action. You should be receiving a letter from the Office of District Counsel. However, if you were not granted prosecutorial discretion, ICE will create a process to identify those who were in removal and who were missed through a case-by-case basis.

(8) What if I qualify, but was issued a final order of removal?

We recommend that you consult with an immigration attorney if you have a final order of removal. A person has a final order of removal if he or she were ordered removed by an Immigration Judge and failed to leave the United States. If you have a final order of removal or an order of voluntary departure or if you are in removal proceedings, you may request deferred action status from USCIS even if you are not yet 15 years old so long as you are under 31 years old.

(9) Will I be eligible for this program if I have criminal convictions?

We recommend that you obtain your criminal record and consult with an immigration attorney before filing an application. Young people who have (a) a felony conviction, or (b) a "significant" misdemeanor offense, or (c) multiple misdemeanor offenses are ineligible for the benefits under this program. If a qualifying individual does not have any prior felonies or misdemeanors but is facing a possible felony or misdemeanor conviction, it is imperative to inform the public defender. The public defender should try to obtain a noncriminal disposition or an adjournment in contemplation of dismissal (New York).

(10) What is a felony offense?

A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year.

(11) What is a "significant" misdemeanor offense?

For this process, a significant misdemeanor is an offense defined by federal law and punishable by imprisonment of more than five days but no more than one year and involves the following acts:

Domestic violence or sexual abuse;

Burglary;

Unlawful possession or use of a firearm;

Drug trafficking or distribution;

Driving under the influence of alcohol or drugs; or

An offense for which you were sentenced for time in custody of more than 90 days (if not one of the acts specified above).

Minor traffic offenses and immigration-related offenses deemed felonies or misdemeanors by state laws will not be considered for this process.

(12) What constitutes "multiple misdemeanors" for purposes of immigration as they relate to this directive?

"Multiple misdemeanors" are three or more misdemeanor convictions not arising out of the same act, omission or scheme of misconduct. These young people are not eligible for deferred action under this directive.

(13) What if I received a Youthful Offender Status or a Juvenile Delinquent Status?

We recommend that you obtain a certificate of disposition or a "rap sheet" and consult with an immigration attorney. We are unsure as to how a youthful offender or juvenile delinquent status will affect a young person's application for deferred action under this directive. Ordinarily, a person who receives YO or juvenile delinquent status cannot be deported for the underlying offense. However, a YO or juvenile delinquent status can be taken into consideration if a person is trying to adjust his or her status, i.e., green card or applies for citizenship.
(14) Can I apply now?

Yes, you can apply as of August 15, 2012. The form to apply for deferred action (I-821-D) is available at www.uscis.gov/childhoodarrivals. At the same time, you will submit two additional forms (I-765 and I-765WS) to request employment authorization. If you want to travel, the form for applying for advance parole should not be submitted until after you have been approved for deferred action status.

(15) What kinds of documents do I need to include with my application form?

The address for sending your application depends on the state you live in. Check on www.ucsis.gov/childhoodarrivals under "Related Links" for the "Direct Filing Addresses for Form 821D, Consideration of Deferred Action for Childhood Arrivals." For the most current information on where to file this request, call the CIS National Customer Service Center at 1-800-375-5283.

(17) If I apply, am I guaranteed deferred action?

We recommend that you consult with an immigration attorney before you file an application with CIS. If you do not meet the basic eligibility requirements or you have serious immigration violations, i.e., a felony conviction, you may be issued a Notice to Appear. A Notice to Appear is a charging document that is served on you and filed with the Immigration Court initiating removal proceedings. If you are placed in removal proceedings as a result of an affirmative application for deferred action, you may apply for immigration relief or pursue prosecutorial discretion under the June 17, 2012 Morton Memorandum.

(18) Will there fees for deferred action?

There is no fee for the form itself, but you will have to pay a total fee of $465 for the costs of biometrics and a work permit application. The check should be addressed to "U.S. Department of Homeland Security."

(19) Will there be any fee waivers?

No, there are no fee waivers available for the employment authorization application.

But limited exemptions are available if you can demonstrate one of the following:

1. You are under 18 years old, homeless, in foster care, or otherwise lack support from parents and family, and your income is less than 150% of the U.S. poverty level;

2. You cannot care for yourself because you have a severe disability, and your income is less than 150% of the U.S. poverty level; or

3. At the time that you apply, you have accumulated $25,000 in debt in the past 12 months because of unreimbursed medical expenses for yourself or family members, and your income level is less than 150% of the U.S. poverty level.

(20) Will there be an appeal process if deferred action is denied?

No, there is no right of appeal if your application is denied by ICE or CIS.

(21) Did President Obama initiate this directive under an Executive Order?

No, this directive is not an Executive Order. An executive order is an order issued and signed by the executive branch. For example, Temporary Protected Status (TPS) is a program pursuant to an executive order. Such a program can be reversed by a new President or by Congress through legislation. Even if President Obama is re-elected, this program may continue for another four years until a new president is elected in 2016. If a new president takes office in 2013, we do not know if this program will continue or what a new administration will do with information submitted through a deferred action application, absent a confidentiality clause.

(22) What if I am eligible to adjust my immigration status?

We recommend that you consult with an immigration attorney. If you qualify under this directive, you may also pursue a simultaneous application for other forms of immigration relief, i.e., adjustment of status.

(23) Will I put my family or myself at risk of deportation if I apply for deferred action?

We recommend that you consult with an immigration attorney. DHS says it will not use information in your application to deport you or your family, unless you meet the established criteria for a Notice to Appear. But your case information--and that of your family's--may be shared for purposes other than removal, including assistance for consideration of deferred action, identification of fraudulent claims, national security purposes, or investigation or prosecution of a criminal offense

(24) Do I need an immigration lawyer?

Yes, we recommend that you contact the Asian American Legal Defense and Education Fund (AALDEF) at info@aaldef.org or 212-966-5932. AALDEF will be holding a series of free legal clinics to provide legal advice and representation for individuals who may qualify for deferred action under this directive.